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Parker v. LLC

United States District Court, S.D. Indiana, Indianapolis Division

October 26, 2018

Brenda Parker, Plaintiff,
v. LLC, John Nguyen, Brent Yoder, OPS Manager, and David Alperson, Defendants.



         Plaintiff, who is proceeding pro se, is a former employee of Defendant LLC (“Amazon”) and initiated this lawsuit on November 28, 2017. She alleges, among other things, that Amazon and Defendants John Nguyen, Brent Yoder, and David Alperson discriminated against her based on her national origin and religion, retaliated against her, and violated various laws by interfering with her use of the internet, tracking her cell phone, and filming her in the women's restroom. Defendants Amazon, Mr. Yoder, and Mr. Alperson have moved to dismiss all of the claims against them, and their motion is now ripe for the Court's decision. [Filing No. 51.]

         I. Standard of Review

         Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         II. Background

         The following are the factual allegations in the Complaint, which the Court must accept as true at this time:

         Ms. Parker was employed by Amazon at its Whitestown, Indiana facility as a packer in the Large Packing Department, and would also pack in the Small Packing Department on occasion. [Filing No. 1 at 4.] Amazon had a daily packing quota that every employee had to meet, which required “a daily rate of 85 and daily pack 850 units per 10 hour shift.” [Filing No. 1 at 5.] Ms. Parker exceeded the packing quotas from 2015 to 2017. [Filing No. 1 at 5.] When Amazon asked Ms. Parker if she would switch from the Large Packing Department to the Small Packing Department, she agreed, but after switching she “realized that her hourly and daily rate were being manipulated to reflect a slower packing rate of units than what [she] was packing.” [Filing No. 1 at 5-6.] Ms. Parker received positive feedback from the end of 2014 through January 2017. [Filing No. 1 at 6.]

         In late 2016 to early 2017, Amazon recruited a male associate to harass Ms. Parker, and he made sexually explicit statements to her that he “has seen all of [her], in all her glory and he started laughing [and] stated ‘you aren't no Christian in what I saw.'” [Filing No. 1 at 15-16.] The associate then was transferred to the night shift or another location and Ms. Parker has not seen him since. [Filing No. 1 at 16.] Ms. Parker believes that Amazon has used a heat seeking device called a “flir” to stalk and spy on her while she is in her own apartment and in the privacy of her own bathroom since 2016. [Filing No. 1 at 16.] She also believes that since 2016 Amazon has used audio recorders near the lockers at the Whitestown facility to record employees' conversations, and alleges that Amazon “has willfully violated [her privacy] by listening in on conversations [she] had on her phone and deliberately interrupting phone calls that [she] attempted to make while on lunch or break.” [Filing No. 1 at 17.] She also alleges that Amazon broke into her locker at work several times to “possibly copy personal documents” and to gain access to her cell phone. [Filing No. 1 at 17.] Additionally, she claims that Amazon hacked into her personal computer and was deleting emails from her account (among other things), and that Amazon incorrectly recorded her tax withholding on her annual salary/wage report, which resulted in her receiving less money. [Filing No. 1 at 18-20.]

         In February 2017, Ms. Parker “was subjected to constant harassment via statements made to [her] relating to her age and to her religious beliefs by former managers and other Amazon Associates, up to the last manager of Large Packing, John Nguyen, who stated that [she] was packing slow, maybe because [she] was feeling her age and was slowing down.” [Filing No. 1 at 6.] Mr. Nguyen stated that “maybe if [Ms. Parker] would not track her units per day, per week that maybe [she] could make rate.” [Filing No. 1 at 6.] He then instructed her to stop documenting her units packed per day, but Ms. Parker continued to do so. [Filing No. 1 at 7.] On May 31, 2017, Mr. Nguyen approached Ms. Parker at her workstation and informed her that she was “receiving a documented written coach because [she] did not make rate the previous week….” [Filing No. 1 at 7.] Ms. Parker met with the Amazon Human Resources Manager, who “took the side of Amazon's directive, ” and Ms. Parker informed that individual that she would be filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). [Filing No. 1 at 7.]

         On June 2, 2017, Ms. Parker completed an Intake Questionnaire with the EEOC in which she checked boxes indicating that she believed she was being discriminated and retaliated against because of her race, sex, age, and religion. [Filing No. 1-1 at 2.] Where the form asked for more details about the alleged discrimination, Ms. Parker wrote:

• “I am a Christian and some of forced survey questions questioned whether I belong at Amazon”;
• “retaliation and joining in on conspiracy because I do battle for my rights”;
• “Attempted to give me a verbal warning reduced to computer submission - which I refused to sign”;
• “Discrimination & illegal activities escalated in the last 60 days”; and
• “Manager stated I must comply with working other Departments - in the best interest of Amazon.” .

[Filing No. 1-1 at 2.] When the form asked what similarly situated individuals were treated better than Ms. Parker, she wrote: “I know of 4 individuals who complained for months about rate and manipulation - some left on their own - some fired - one took buy out after peak. 3 were older adults and all African Americans all new hires black, white, Asian are all treated better than me.” Filing No. 1-1 at 2.] When the form asked what similarly situated individuals were treated worse than her, she wrote: “African American males of all ages treated worse. Employees over age 55 - all nationals treated worse.” [Filing No. 1-1 at 3.] When the form asked what similarly situated individuals were treated the same, Ms. Parker wrote: “Lady by the name of Brenda…. She was AA - very loud & verbal - complained for months - just as I have.” [Filing No. 1-1 at 3.] When the form asked whether there were any witnesses to the alleged discriminatory incidents, Ms. Parker wrote, “In conversations with some associates - stated Amazon is attempting to fire numerous individuals to soon go automatic with packing machines then too face made rate often and now barely make rate - rather not give names - would possibly retaliate by Employer.” [Filing No. 1-1 at 4.]

         On August 24, 2017, Ms. Parker filed a Charge of Discrimination with the EEOC (“EEOC Charge”). [Filing No. 1-1 at 5-6.] She stated:

I am an associate assigned to work in large packaging. I have been employed since February 2014. Respondent has engaged in illegal employment practices (manipulating production rates and forcing all employees to take a survey before they can log into the computer to do their work); forced me to cross train in other departments; and given me a verbal warning for not making production rate due to my race (black), sex (female), age (56), religion (Christian), and in retaliation for informing Human Resource officials I would file a charge with the EEOC.
I allege retaliation at work and in private because I filed a complaint on Ops Manager in 2016 via phone. R has placed me in the back of packing stations several times a week.
I believe R has falsified production rates by percentage and failing to prove non production rate. Other associates participate in the discrimination.

[Filing No. 1-1 at 5.] In response to what her discrimination claims were based on, Ms. Parker checked boxes for “race, ” “sex, ” “religion, ” and “retaliation.” [Filing No. 1-1 at 5.]

         Ms. Parker had not received any written warning, write up, or “time off task write up” until she received a write up on September 4, 2017 from Mr. Nguyen (who was instructed by Mr. Yoder to give her the write up) related to their May 31, 2017 meeting. [Filing No. 1 at 7.] Although it is not the normal practice for an employee to have to meet with Human Resources to receive a write up, Mr. Nguyen “deliberately attempted to intimidate [Ms. Parker] by requiring [her] to appear at HR….” [Filing No. 1 at 8.] Ms. Parker refused to electronically sign the write up and, when she asked why she was receiving the write up, a Human Resources employee asked Ms. Parker to follow her to the women's restroom. [Filing No. 1 at 9.] Once inside the women's restroom, Ms. Parker pointed to the ceiling and asked the Human Resources employee, “What is that?” [Filing No. 1 at 9.] The Human Resources employee said “That is not a camera.” [Filing No. 1 at 9.] Ms. Parker said “What is that then?, ” and the Human Resources employee stated “That is not a camera” and said she would send someone to Ms. Parker's workstation to tell her what it was. [Filing No. 1 at 9-10.] No one came to Ms. Parker's workstation to “offer explanation or cause for a camera being installed in the women's restroom…” [Filing No. 1 at 10.]

         Ms. Parker was enrolled in IUPUI's “CIT Certificate Program” but, because she received a write up, she could not qualify for Amazon's Career Choice Program (which reimburses 90% of tuition) or its School Accommodations.[1] [Filing No. 1 at 8.]

         At this time, Ms. Parker was leaving work at 3:00 p.m. on Tuesdays to attend class at 6:00 p.m. in downtown Indianapolis. [Filing No. 1 at 10.] She would then make up the missed hours on Thursdays. [Filing No. 1 at 10.] On September 6, 2017, Mr. Nguyen approached Ms. Parker and stated that she “was not making rate.” [Filing No. 1 at 10.] She then “endured numerous questions, statements and accusations from other packing associates and managers, questioning [her] beliefs, why [she] did not appear to like certain music and why [she] did not belong to any of Amazon's numerous ‘clicks.'” [Filing No. 1 at 10.]

         Ms. Parker alleges that Amazon associates had to complete a Connection Survey Questionnaire “before each associate [could] begin their daily duties of packing.” [Filing No. 1 at 11.] She alleges that 95% of the questions had “nothing to do with the duties of the associate or employment with Amazon, ” and that most of the questions “consisted of personal and private informational questions that Amazon forced an answer from all associates before they could start their shift of work.” [Filing No. 1 at 11.] Ms. Parker alleges that she asked other associates about the questions on their surveys, and that “there were times questions were especially created for [her] as a Christian, over 40 years old and black.” [Filing No. 1 at 12.] She also alleges that the survey included numerous questions about a lawsuit she had initiated in federal court. [Filing No. 1 at 12.] Specifically, she alleges that the Connection Survey Questionnaire asked her: (1) “Do you not complain about issues relating to [your] job because [you] feared what will happen to [you]?”; (2) “Do[es] Plaintiff intend to learn about all subjects of law or just what Plaintiff is litigating at present?” (3) “Do you feel you belong here at Amazon as a minority Christian?” and (4) “What Superpowers do[es] Plaintiff have?” [Filing No. 1 at 12-13.]

         In August 2017, Mr. Nguyen insisted that Ms. Parker be cross-trained in the AFE Department, [2] even though Ms. Parker did not want to receive that training. [Filing No. 1 at 13.] Ms. Parker was pulled from the Large Packing department usually in the midday, and sent to AFE for packing and then threatened with a write up for not making her rate. [Filing No. 1 at 13.] Mr. Nguyen, however, was “unable and unwilling to break down the procedures he followed in the Application utilized by Amazon to track rates (ADAPT) to show how [she] did not make rate.” [Filing No. 1 at 14.] When Ms. Parker packed “swiftly and accurately” for a day, Mr. Nguyen would claim that the ADAPT program exhibited an error. [Filing No. 1 at 14.] Amazon, at Mr. Yoder's direction, then continued to implement new rules on the packing rates “in attempts to entrap [Ms. Parker] in her efforts to continue to make rate.” [Filing No. 1 at 15.]

         Ms. Parker claims that Amazon had a practice of “get[ting] rid of older associates to make room for younger associates, ” and “utilize[d] an employment agency, which caters to Asian individuals to hire more Asians in packing Large and Small, packing in AFE, stowing and picking departments.” [Filing No. 1 at 20-21.] She alleges that Amazon has targeted her because it “decided that [she] did not belong at Amazon and Amazon appear[ed] to be bothered by [her] age, religious preference and understanding of law.” [Filing No. 1 at 21.] Ms. Parker began feeling unsafe at Amazon and “believed her mental, Spiritual and physical well-being was being jeopardized” by staying at Amazon. [Filing No. 1 at 9.] She applied for a leave of absence, but her request was denied because she “had an active written write up.” [Filing No. 1 at 9.] Ms. Parker voluntarily left her employment at Amazon in September 2017 after completing Amazon's Career Choice Program and accepting a voluntary buyout. [Filing No. 1 at 10; Filing No. 1 at 18-19.]

         Ms. Parker sets forth claims for: (1) national origin discrimination under Title VII; (2) religious discrimination under Title VII; (3) retaliation under Title VII; (4) violation of the Communications Act, 47 U.S.C. § 333; (5) violation of “S 1212 H.R. 2168 for willful and malice live tracking of mobile phone”; and (6) “unlawful filming in women's restroom.” [Filing No. 1 at 21-31.] She seeks lost wages and benefits, compensatory damages, punitive damages, fees and expenses, and prejudgment interest. [Filing No. 1 at 31-32.]

         III. ...

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